Following the Supreme Court's scathing questioning of Plaintiff's counsel, corporate America can sleep more peacefully at night.  On March 29, 2011, the Court heard oral argument in Wal-Mart Stores v. Dukes.  The lawsuit accuses Wal-Mart of systematically paying as many as three million female workers less than men and providing them with fewer opportunities for promotion. At stake are billions of dollars in back pay and punitive damages amounting to an average of $1,100 per affected employee.  The suit can potentially set a new standard for gender discrimination lawsuits and many companies including Altria Group, Inc., Bank Of America Corporation, Cigna Corporation, Costco, Del Monte Foods Company, Dole Food Company, Inc., Dollar General Corporation, Dupont Company, Fedex Corporation, General Electric Company, Hewlett-Packard Company, Kimberly-Clark Corporation, Microsoft Corporation, Pepsico, Inc., Tyson Foods, Inc., UnitedHealth Group Incorporated, United Parcel Service, Inc., Walgreen Co. have all filed briefs in support of Wal-Mart.

At issue is whether the the alleged victims, who worked in 170 job classifications across 3,400 stores, have too little in common to qualify for a single class action suit. The plaintiffs allege that regardless of the varying job classifications and store locations, the women all suffered from the same discriminatory practices in a corporate culture "rife with gender stereotypes."

The Court's comments from the bench strongly indicated that they were unlikely to allow the claim to proceed.  Justices Scalia and Kennedy both strongly questioned the Plaintiffs claim that bias decisions all emanated from a central corporate culture while, at the same time, individual store managers had the discretion to make their own decisions.  Justice Scalia, in his trademark judicial candor said, "I'm getting whipsawed here. On  the one hand you say the problem is that they were utterly subjective and on the other hand you say there is a strong corporate culture that guides all this. Well, which is it?"   Justice Kennedy joined in the criticism: "You said this is a culture where [Wal-Mart headquarters] knows everything that's going on. Then in the next breath you say ... these supervisors have too much discretion."  Justice Alito further questioned whether purely statistical evidence had sufficient evidentiary value saying that, on that basis, every large corporation in the United States would potentially be subject to similar class action suits.

Alexandra Lahav, a professor of law at the University of Connecticut Law School said, "The case doesn't look promising for plaintiffs based on the questions the justices asked."